Recent case: Can you claim interim occupation rent?
Both parties moved for a range of relief in this case. The mother sought sole decision-making, dispensing with the need for the father’s consent to decisions, and retroactive child support including s.7 expenses. The father sought sole parenting time of the children or, in the alternative, equal, shared parenting, partition and sale of the matrimonial home as well as occupation rent on the matrimonial home.
In this case, the parties were married for three years, during which time they had two children. The mother details numerous incidents of domestic violence, some of which occurred in front of the children. While the mother was granted final decision-making authority after consulting with the father, the court also granted her leave to dispense with the father’s consent.
What is interesting about this case is that the father requested partition and sale of the home on an interim motion. Justice Kurz found the request to be premature. While there was no order for exclusive possession of the matrimonial home, the mother and the children lived together in the home since the time the father was charged and removed from the home. Both children are young and vulnerable and one of them would likely suffer from the change in routine if he were removed from the only home he has ever lived.
In arriving at his decision, Justice Kurz stated that the father had not provided any case law to support an order for interim occupation rent. He stated:
- Occupation rent is an exceptional remedy.
- It is generally part of a claim for an unequal division of net family property under s.5(6) of the Family Law Act. The test would be one of unconscionability and it should not be determined on an interim basis.
- It is rarely granted against a spouse living in a home with the parties’ children.
- The court can consider the conduct of the parties (in this case, there was domestic violence).
The father’s claim for interim occupation rent was dismissed.
